UNITED STATES OF AMERICA, Plaintiff-Appellee, v. VICKIE L. SANDERS, Defendant-Appellant.
No. 18-2165
United States Court of Appeals For the Seventh Circuit
ARGUED NOVEMBER 8, 2018 — DECIDED DECEMBER 3, 2018
Before FLAUM, MANION, and ST. EVE, Circuit Judges.
Appeal from the United States District Court for the Southern District of Illinois. No. 17-cr-40043 — J. Phil Gilbert, Judge.
FLAUM, Circuit
I. Background
On July 12, 2017, the government charged Vickie Sanders with conspiracy to manufacture fifty grams or more of methamphetamine, in violation of
Over twenty years earlier, in 1996, a California state court convicted Sanders of felony possession of a controlled substance in violation of
On January 11, 2018, Sanders filed a motion to continue her sentencing hearing. Eleven days later, a California state court reclassified her 1996 felony drug conviction as a misdemeanor pursuant to California Proposition 47,
On May 9, the district court sentenced Sanders to concurrent sentences of 120 months’ imprisonment on Count 1 and 87 months’ imprisonment on Counts 2 through 6. It imposed an eight-year term of supervised release on Count 1, a six-year term of supervised release on Count 2, and a three-year term of supervised release on Counts 3 through 6, all to run concurrently. The court also imposed a $300 fine and $600 special assessment. This appeal followed.
II. Discussion
Sanders argues that because a California court reclassified her prior conviction as a misdemeanor, the district court improperly imposed a ten-year mandatory minimum prison term under
A. Statutory Framework
1. 21 U.S.C. § 841(b)(1)(B)
“Section 841(b) outlines the penalties for federal drug crimes based upon the quantity of drugs involved and the number of prior drug convictions.” Arreola-Castillo, 889 F.3d at 384. Relevant here, “[i]f any person commits [a federal drug offense] after a prior conviction for a felony drug offense has become final,” that individual faces a mandatory minimum of ten years’ imprisonment.
“To impose a recidivism penalty under § 841, the government must follow the procedures in
2. California Proposition 47, Cal. Penal Code § 1170.18
In November 2014, California passed Proposition 47, the Safe Neighborhood and Schools Act. See
“Proposition 47 explicitly anticipates that redesignation of an offense as a misdemeanor will affect the collateral consequences of a felony conviction.” People v. Khamvongsa, 214 Cal. Rptr. 3d 623, 625 (Ct. App. 2017). Thus, “[t]o ensure qualified offenders who have had their prior felony convictions redesignated can gain relief from ... collateral consequences,” id. at 626, Proposition 47 specifies that if a felony conviction is “recalled” or “designated as a misdemeanor,” it “shall be considered a misdemeanor for all purposes” other than gun possession.
B. Application of the § 841(b)(1)(B) Enhancement
Sanders argues that because a California court reclassified her 1996 felony conviction as a misdemeanor, she is not eligible for a sentence enhancement under
We join the Third and Ninth Circuits in holding that a defendant who commits a federal drug offense after previously being convicted of a state felony drug offense is subject to § 841‘s recidivist enhancement even if that prior offense was reclassified as a misdemeanor pursuant to Proposition 47. See United States v. London, No. 15-1206, slip op. at 9 (3d Cir. Aug. 31, 2018) (unpublished) (“Because the subsequent reclassification of [the defendant‘s] California conviction had no bearing on that conviction‘s underlying lawfulness, he remains eligible for the sentence enhancement he received under [§ 841].“); United States v. Diaz, 838 F.3d 968, 975 (9th Cir. 2016) (“California‘s Proposition 47, offering post-conviction relief by reclassifying certain past felony convictions as misdemeanors, does not undermine a prior conviction‘s felony-status for purposes of § 841.“), cert. denied sub nom., Vasquez v. United States, 137 S. Ct. 840 (2017).
To determine whether a defendant has a prior state conviction for purposes of applying a federal recidivism enhancement provision, we look to federal law. See Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 111–12 (1983) (“Whether one has been ‘convicted’ within the language of the gun control statutes is necessarily ... a question of federal not state law, despite the fact that
As always, “we must ‘begin[] with the plain language of the statue.‘” Arreola-Castillo, 889 F.3d at 385 (alteration in original) (quoting United States v. Berkos, 543 F.3d 392, 396 (7th Cir. 2008)). Section 841(b) states that a defendant is subject to a ten-year minimum term of imprisonment if she commits a federal drug offense “after a prior conviction for a felony drug offense has become final.”
Here, there is no dispute that Sanders both committed a federal drug offense and was convicted of a prior felony drug offense in California that had become final. California‘s later decision to reclassify the felony as a misdemeanor “‘does not alter the historical fact of the [prior state] conviction’ becoming final—which is what § 841 requires.” Id. (alteration in original) (quoting Dyke, 718 F.3d at 1292); see also id. at 972 (“Although the [state‘s] statute [can] determine the status of the conviction for purposes of state law, it [can]not rewrite history for the purposes of the administration of the federal criminal law or the interpretation of federal criminal statutes.” (alterations in original) (quoting United States v. Bergeman, 592 F.2d 533, 536 (9th Cir. 1979))).
While we have not addressed whether a state felony reclassified as a misdemeanor can be used to enhance a federal drug sentence, we have held a discharged drug conviction is considered a predicate “conviction” for purposes of applying the
Of course, if it desired, Congress could “give retroactive effect to changes in state law for purposes of federal statutes.” Diaz, 838 F.3d at 974. Indeed, it “clearly
This makes sense. A primary purpose of § 841 “is to discourage repeat offenders.” Diaz, 838 F.3d at 974. Thus, “[i]f a state provides relief for a prior state drug conviction, after the defendant has committed another, federal, drug crime, ‘it‘s unclear why a [federal] statute aimed at punishing recidivism ... would afford the defendant’ relief in his federal sentence.” Id. (second alteration in original) (quoting Dyke, 718 F.3d at 1293); see also London, slip op. at 9 (“That purpose would not be served by affording a defendant relief from his federal sentence whenever a state provides him procedural relief related to a previous state conviction after he has already committed another federal drug offense.“). Additionally, “[i]gnoring later state actions for purposes of federal sentences ... aligns with the Supreme Court‘s repeated admonishments that federal laws should be construed to achieve national uniformity.” Diaz, 838 F.3d at 974 (citing Dickerson, 460 U.S. at 112). “If state post-conviction procedures always impacted eligibility under § 841, the federal sentence enhancement would apply in an unfair, ‘patchwork’ manner.” London, slip op. at 9 (quoting Diaz, 838 F.3d at 974). It is unlikely Congress intended such a result.
Sanders argues an “absurdity results if courts fail to recognize changes made retroactive by the state: The length of a defendant‘s sentence would depend on the date on which an unrelated state crime was committed.” She contends “[t]here is no principled reason why two defendants with identical criminal histories, who violated
Despite the clear text and the Third and Ninth Circuit‘s opinions, Sanders maintains “Supreme Court precedent indicates that a federal recidivist sentence cannot rely on a state conviction retroactively reduced by state law.” Not so. True, “a defendant given a sentence enhanced for a prior conviction is entitled to a reduction if the earlier conviction is vacated.” Johnson v. United States, 544 U.S. 295, 303 (2005) (emphasis added). This is not controversial. When a state court “vacates” a prior conviction, it, in effect, nullifies that conviction; it is as if that conviction no longer exists. See Arreola-Castillo, 889 F.3d at 385–86. For that reason, courts recognize an “obvious exception to the literal language” of federal recidivist statutes imposing enhanced penalties due to prior convictions where the “predicate conviction ha[s] been vacated or reversed on direct appeal.” Dickerson, 460 U.S. at 115; cf. Diaz, 838 F.3d at 973 (“We noted one exception: where the dismissal or expungement alters the legality of the original state conviction—such as where there was a trial error or it appears the defendant was actually innocent of the underlying crime.“). Proposition 47, however, does not “vacate” prior felony convictions; it reclassifies them as misdemeanors. Thus, Johnson is not helpful to Sanders‘s argument.1
Additionally, Sanders points to the Court‘s opinion in McNeill. There, the defendant argued that because North Carolina changed its drug laws, his prior state drug convictions should not qualify as “serious drug offenses” for purposes of the Armed Career Criminal Act (“ACCA“) sentencing enhancement.2 McNeill, 563 U.S. at 818. The Court disagreed; it held that the ACCA “requires the court to determine whether a ‘previous conviction’ was a serious drug offense,” and “[t]he only way to answer this backward-looking question is to consult the law that applied at the time of that conviction.” Id. at 820. In a footnote, the Court expressly declined to consider the “situation in which a State subsequently lowers the maximum penalty applicable to an offense and makes that reduction available to defendants previously convicted and sentenced for that offense.” Id. at 825 n.1.
Sanders suggests that McNeill indicates the Court believes the recidivist enhancement should not apply here, where California retroactively reclassified her state drug conviction from a felony to a misdemeanor. This is not the case; the Court did not comment one way or the other. Sanders points to the Eleventh Circuit‘s opinion in Cortes-Morales v. Hastings, 827 F.3d 1009 (11th Cir. 2016) (per curiam), cert. denied, 137 S. Ct. 2186 (2017). There, a defendant who received an enhanced sentence under the ACCA based on prior New York drug convictions sought resentencing on the grounds that he no longer qualified for an ACCA enhancement due to New York‘s 2004 and 2009 Drug Law Reform Acts (“DLRAs“).3 Id. at 1011. The Eleventh
In sum, we agree with the Third and Ninths Circuits that for purposes of applying the
C. Constitutional Concerns
Sanders argues applying the
1. Due Process Clause
“[A] criminal defendant has the due process right to be sentenced on the basis of accurate information.” Ben-Yisrayl v. Buss, 540 F.3d 542, 554 (7th Cir. 2008); see Townsend v. Burke, 334 U.S. 736, 740–41 (1948) (holding that a sentence based on “assumptions concerning [a defendant‘s] criminal record which were materially untrue ... is inconsistent with due process of law“). Here, however, Sanders was sentenced based on accurate information; she received an enhanced sentence because at the time she committed the federal offense, she had a “prior conviction for a felony drug offense” that was “final.” See
Sanders relies on Hicks v. Oklahoma, 447 U.S. 343 (1980). There, a defendant faced a jury trial for a state drug offense. Id. at 344. Since the defendant was convicted of two felonies in the prior ten years, the jury was instructed in accordance with Oklahoma‘s habitual offender statute that if it found the defendant guilty, it was required to impose a forty-year prison sentence. Id. at 344–45. The Oklahoma courts acknowledged that the habitual offender statute was unconstitutional, but nevertheless upheld a forty-year prison term because the sentence was within the range of punishment
The present case is distinct from Hicks for an obvious reason: unlike the habitual offender statute,
2. Equal Protection Clause
“Equal protection of the laws means that all persons similarly situated should be treated alike.” United States v. Nagel, 559 F.3d 756, 760 (7th Cir. 2009). Sanders‘s equal-protection claim does not involve a suspect classification, and therefore, we use rational-basis review. See United States v. Speed, 656 F.3d 714, 720 (7th Cir. 2011). Under rational-basis review, Sanders “must show that there is no ‘rational relationship between the disparity of treatment and some legitimate governmental purpose.‘” Id. (quoting Nagel, 559 F.3d at 760).
Sanders contends applying
In Speed, we rejected an equal protection challenge similar to Sanders‘s challenge. The defendant argued he was denied equal protection under the Fair Sentencing Act (“FSA“) because “refusing to apply the FSA to defendants sentenced shortly before the passage of the FSA results in radically different sentences between them and those who are entitled to have the FSA apply to them.” Id. We held that “the disparate treatment to which [the defendant] points is plainly rational, as ‘discrepancies among persons who committed similar crimes are inescapable whenever Congress raises or lowers the penalties for an offense.‘” Id. (quoting United States v. Goncalves, 642 F.3d 245, 253 (1st Cir. 2011)). We recognized that whenever a sentencing statute is amended, “[s]omeone, in the end, will always be left behind to live with the earlier, harsher penalty.” Id. And we concluded that “[w]hatever arbitrariness there may be is therefore unavoidable.” Id. The same
3. Tenth Amendment & Federalism
Pursuant to the Tenth Amendment, an individual “can assert injury from governmental action taken in excess of the authority that federalism defines.” Bond v. United States, 564 U.S. 211, 220 (2011); see also id. at 223–24 (“[A] litigant, in a proper case, [may] challenge a law as enacted in contravention of constitutional principles of federalism.“).
Sanders asserts that by passing Proposition 47, California expressed its view that certain nonviolent drug offenses are misdemeanors “for all purposes.”
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court.